Don’t Just Get Kids Off the Sex Offender Registry. Abolish It

Recently the New Yorker published a major article about juvenile “sex offenders.” The story, by staff writer Sarah Stillman, is far ranging, moving and important. Stillman writes about many young people who were caught doing anything from playing doctor to sexually coercing another person (usually another child). Convicted for sex crimes, some of these youth are incarcerated and subject to lifelong sex offender registration—a kind of social death sentence.

The New Yorker article follows a year in which the juvenile sex offender (JSO) was frequently in the news. Josh Gravens, a Texas father of four convicted at age 12 of sexual contact with his younger sister, was profiled by Reuters and the Dallas Observer, which celebrated him as one of “the metro area’s most interesting characters.” Zachary Anderson’s case, and a photo of his parents, appeared on the cover of the New York Times. At 19 Zach, an Indiana computer studies student, had sex with a woman who presented herself as 17, but was 14. He too faced sex offender registration.

In stark contrast to earlier iterations–Jeffrey Dahmer, Jesse Timmendequas, or the villains on “Law & Order: SVU” – these “new” sex offenders are humanized: attractive, promising, law-abiding heterosexual sons and fathers who made some youthful mistakes and deserve a second chance.

Behind this sympathetic media coverage are decades of organizing by groups like Reform Sex Offender Laws (RSOL) and recent policy reports, including Human Rights Watch’s groundbreaking Raised on the Registry (2013), by Nicole Pittman, that have raised the visibility of registered sex offenders, particularly those convicted as juveniles.

Most recently, with Project Impact, Pittman has launched the Center on Youth Registration Reform (CYRR), whose mission is to “eliminate the practice of placing children on sex offender registries in the U.S.” Although the grassroots RSOL network—comprised largely of registered offenders and their families—has long advocated for youth caught up in the sex offender regime, thanks in part to the New Yorker article, and a companion video about Pittman, CYRR shows the potential of becoming the face of JSO advocacy. And with what what it describes as a “zealous, unwavering, [and] tactical” strategy, the campaign has a good chance of success in removing many kids from the registry. This will improve countless lives.

These campaigns follow a well-worn criminal justice system reform track: advocating for more compassionate treatment specifically for young people who break the law, from drug dealing to homicide. This tactic—reinforced by frequent reference to research showing that teenage brains aren’t fully developed—has had some traction in other areas of criminal justice reform, for instance, to eliminate the death penalty and reduce life without parole for those convicted as juveniles.

A focus on the juvenile sex offender—or any juvenile offender—has potential upsides. It invites audiences to see a whole person and a complex situation and to empathize with the person who has done, or been accused of doing, harm. The invocation of childhood, and its suggestion of innocence by reason of immaturity, can spread sympathy more widely to whole communities harmed by the carceral state, particularly when kids are secondary victims of parental incarceration and systemic “civil death” or disenfranchisement.

Coverage of the JSO often unpacks the category of “sex offender”—pointing out that it includes convictions for sexting, public urination and consensual sex between minors, as well as violent rape and the abuse of children; it can expose the uniquely harsh treatment of all these people by the U.S. criminal justice system and the public. These stories point to the youthful offender as collateral damage in a regime of indiscriminate and ever-escalating penalties.

For instance, The Marshall Project approached the issue of civil commitment through the story of the resident/inmate Jhon Sanchez, convicted of sexual assault at the age of 13. The headline foregrounded the kid—“Why Some Young Sex Offenders are Held Indefinitely”; only in the subhead was the reader clued in that the story goes “inside the world of civil commitment.”

An organizing example: Before International Megan’s Law passed in early 2016, requiring citizens convicted of sex offenses to carry passports that visibly mark their status as sex offenders, a small network of groups mobilized across the county to encourage Obama to veto this bill. The talking points for opposition to the law zeroed in on the ways it would harm juveniles. “The law pins this scarlet letter most senselessly on children adjudicated in juvenile or family court,” read one email circulated to activists.

Why youth?

In one way, it makes sense to focus on extricating juvenile sex offenders from the registry. An estimated one-fourth of the people on the public sex offender registries were convicted as juveniles. Fifteen states post the names and photos of offenders who are minors on the online registries. Thirteen of the 20 states that lock up people in indefinite civil commitment—preventive, dubiously therapeutic detention for crimes not yet committed—include people who committed their offenses as juveniles. “The single age with the greatest number of offenders from the perspective of law enforcement was age 14,” according to the U.S. Department of Justice.

As Raised on the Registry powerfully showed, with little or no intervention these young people are virtually guaranteed not to “reoffend,” mainly because so many of them are penalized for engaging in sex play—things that, even if not always entirely consensual, are common among children and usually without long-lasting harm.

There is no question that getting some people off the list can be a first step toward getting others off—and a way of chipping away at the policy. One RSOL leader compared this tactic to the anti-choice movement’s success in virtually banning legal access to abortion, one little restriction at a time.

Why not only youth?

But there are also significant downsides to campaigns that construct children as exceptional and different from adults. The public may just as easily be left feeling that adults who break the law are bad and deserve all they get—or that guilty people do not deserve fairness or sympathy. This gives legislators a rationale for trading off youth-friendly criminal justice policies for harder adult penalties, as recently happened when New Mexico legalized sexting between teens but increased penalties for people 18 and older sexting with people under 18. Not just adults but some youth can be penalized by the focus on “children.” Call the person who breaks the law a “child,” and there’s a danger that any young person not demonstrably childlike will end up prosecuted as an adult.

Exclusive focus on the young offender—rather than a rejection of the entire sex offender regime—avoids the larger, less politically popular truth. “Sex offender registries are harmful to kids and to adults,” says Emily Horowitz, associate professor of sociology and criminal justice at St. Francis College in Brooklyn, and a board member of the National Center for Reason & Justice, which works for sensible child-protective policies and against unjust sex laws. “No evidence exists that they prevent sex crimes either by juvenile offenders or adult offenders.”

Such a strategy can invite a wider range of supporters, but it also can mean inadvertent acceptance or even endorsement of policies that are antagonist to justice for wider groups, if not for everyone. For instance, CYRR is collaborating with Eli Lehrer, of the free-market think tank R Street; he is also a signatory of the conservative Right on Crime initiative. Flagged on the CYRR site is an article by Lehrer, published this winter in National Affairs, that argues for taking kids off the registry. But the piece also concludes that ending the registries would be “unwise” and suggests they’d be really good with a few “sensible” tweaks. Lehrer also proposes hardening policies—such as “serious” penalties for child pornography possession and the expanded use of civil commitment—that data reveal to be arbitrary or ineffective and many regard as gross violations of constitutional and human rights.

In a more recent piece in the Daily Caller, as well as testimony before the South Dakota legislature this session, Lehrer repeats how important it is to punish “child molesters” harshly, and while he notes the low recidivism rate for juvenile sex offenders, does not mention that other adults with sex offenses show similarly low rates.

Similarly, at the top of an important page of CYRR’s site is a quote from a Seattle special victims unit cop: “The most recent laws dilute the effectiveness of the registry as a public safety tool, by flooding it with thousands of low risk offenders like children.” This is a common argument: that a less-cluttered registry would allow police to keep track of the “worst of the worst.” Are these CYRR’s positions? Pittman declined to speak on the record.

But CYRR is not alone in its reluctance to speak out for total abolition of failed and unjust sex offender policies. The National RSOL group—composed of people whose lives have been destroyed by these policies—advocates for registries accessible to law enforcement only. This is the kind of list that police used in the mid-20th century to terrorize and criminalize “known homosexuals” and men who had sex with other men. RSOL also wants to “reform,” not end, civil commitment, the indefinite post-sentence preventive detention of sex offenders deemed at risk to reoffend, a policy that’s been condemned as a human rights violation.

For coppyright reasons you should read the rest of this article on CounterPunch